“For the saddest epitaph which can be carved in the memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.”
–Dr. Syama Prasad Mukherjee, 16th of May, 1951, During debate on the First Amendment of Indian Constitution brought in by Nehru imposing restrictions on Freedom of Speech.
In the face of a certain defeat in the face of a brute Congress majority backing Nehru bringing back colonial restrictions on liberty months after Independent India’s new constitution was adopted, a sad and dejected Dr. Mukherjee had quoted George Sutherland, a Supreme Court Judge of the United States of America (1922 to 1938).
Nehru quickly went out with a vengeance and got noted Urdu poet Mazrooh Sultanpuri and actor Balraj Sahni arrested for two years, former for writing a poetry critical of Nehru and latter on sedition charges. When the debate on first amendment was going on an Dr. Mukherjee, who would later found Jan Sangh, the predecessor to the Bhartiya Janata Party, forewarned him –Maybe you will continue for eternity, in the next generation, for the generations unborn…but supposing another party comes into authority? What is the precedence you are laying down? I am not sure that even Dr. Mukherjee would be aware that some day great Grandson of Nehru would find himself at the receiving end of the laws Nehru formulated, slowly but surely strangulating the free spirit of democracy.
In a speech in 2019, buoyed by a cheering coterie of unelected and unelectable who came to surround Rahul Gandhi as his advisors, and self-assured in his own greatness being the scion of the Nehru family which survived as a legitimate political force in spite of writing the cruelest episode of Emergency, owing to the forgiving people of India, made offensive comments, loosely calling all belonging to one caste, coincidentally falling under the Other Backward Classes, as thieves. The matter went to court and now, the court in Surat has convicted Rahul Gandhi and sentenced him with two years of imprisonment. Immediately bail was sought and obtained, a happy and relieved Rahul Gandhi came back home.
Little did he realise that it was not only his Great Grandfather’s work but his father’s and his own actions will soon come to haunt him. The Surat court convicted Rahul Gandhi, gave him bail, saving him from an immediate arrest and granted him 30 days time to approach higher judiciary for relief. While this was well understood that a conviction of two years will attract the disqualification, there were some apparent confusion, if not a haughtiness which gave Mr. Gandhi some sense of invincibility. From Rafale allegation to National Herald to charges on RSS, the easy escapes from law, with a battery of legal eagles supporting him possibly filled him with a false sense of security that he had no reason to worry.
For some reason, the battery of lawyers who exist simply to protect the first family of Congress misread the implications of the judgement. Abhishek Manu Singhvi, one of the family lawyer of the Gandhi family, claimed that he could not read the judgement as it was in Gujarati, which is strange that a national party could not find one person who could translate the critical judgement for Mr. Singhvi and other Congress lawyers.
The Political Fallout
What appears most likely is that they did not consider political ramifications of a legal development. After the judgement of Surat court, Rahul could have come out on bail and then claimed being a martyr being attacked for raising the voice for the masses and more importantly, for attacking Adani. While BJP has put the matter of his unsavoury statements in foreign lands to the privilege committee of the parliament, to suspend Rahul Gandhi on that would have had limited impact and would have smacked of vindictiveness on the part of Modi government. This two-year conviction was a god-send opportunity for the BJP. While the Judge of Surat court gave Rahul thirty days to appeal, his disqualification came into effect immediately. The thirty day time frame is not to delay disqualification rather to appeal to higher courts. There seems to have been some confusion there.
There are three arguments being made which possibly could in a way, explain the lackadaisical manner in which the Congress handled the whole matter. First is the reading of Representation of People’s Act, 1951, Section 8 on Disqualification on conviction for certain offences. There is a vague mention that the disqualification will happen only if an appeal is not filed within three months from the conviction and once appeal is filed, the disqualification will not take effect until the appeal is disposed off by the higher Courts (sub-clause 4). Secondly, there is a perception being built that this disqualification will require a confirmation from the President. There is a time of 30-days given to Rahul Gandhi to file an appeal. Many bleeding-heart legal luminaries who are great because their fathers were great legal luminaries like Prashan Bhushan are harping on this stay claiming that the court gave Rahul Gandhi 30 days to act in order to keep his Parliamentary membership but the “cruel government “has decided to not let him take benefit of what the learned Judge of Surat court has granted him.
The Defamation Laws came to India with IPC during the British rule under Section 499 and Section 500, brought in by Lord Macaulay in 1837. Section 499 of the IPC 1860, stated- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person.
Rahul Gandhi had the option of apologising claiming the comment to be unintentional but the advisors might have thought that this was an opportunity to make a low-cost martyr for the cause of free speech out of Rahul Gandhi and he stood with his statement, unapologetic. Section 500 defines the provisions of punishment for defamation as Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Thus the questions on the quantum of punishment handed out to Rahul Gandhi for attempting to call a community, an OBC community in this case, as thieves is totally in accordance with the laid down laws. Now some may argue that this law stands in contradiction to Article 19(1) of Indian Constitution and it does. But this was covered by Nehru, Rahul Gandhi’s Great Grandfather and the first Prime Minister of India in the first amendment under Article 19(1)(a) which puts freedom of expression and speech (from where we started this article) under reasonable restraint, defamation laws are said to protect fundamental right to reputation under Article 21. This was settled in the Supreme Court in Subramanian Swamy Vs. Government of India case in 2016 judgement by the bench of Justice Deepak Misra and Justice Prafull C Pant, leaning on the first amendment brought in by Nehru.
The law under which Rahul is convicted could have become even more stringent if Rahul’s father had prevailed with the Defamation bill of 1988. The bill was brought in the parliament on 29th of August, 1988 and was passed within a day. The bill was a knee-jerk response by Rajiv Gandhi to the constant attack on his government in Bofors Bribery case. After widespread public outrage on the charges of attempts to muzzle the media with the bill, the bill was withdrawn in September, 1988.
Coming to what is meant by the time of 30 days given to him to file an appeal, let us look at what the courts said while explaining the political ramification of this two year sentence. This is covered in the Section 8 of Representation of People’s Act, 1951, which provisions for the disqualification of an elected representative when convicted for a period of two years. The original Act gave a leeway to the convicted elected representatives under Sub-clause 8 (4). The original provision under clause 8(3) is to disqualify the elected representative convicted and handed out a sentence of two year imprisonment and barring him or her from contesting for any public office for 6 years from the time of release from his sentence. This effectively in current case would mean rendering Rahul gandhi unfit for contesting public election till 2029, assuming that the sentence of two year is brought into effect immediately. The Clause 8(4) had a provision wherein the disqualification was not to be effected until the time superior courts have reached a decision in case when the representative appeals in higher court within 3 months of the initial conviction. This clause was made ineffective by the Supreme Court in 2013, July order in Lily Thomas case, where the an octogenarian lawyer, Lily Thomas filed a case, aghast at the way convicted criminals were making way to the parliament taking shelter under Clause 8(4).
The lawyer, Lily Thomas, whofiled the petition first in 2005 famously said- “Krishna in Bhagwan Gita says that He will be born for restoring Dharma whenever it is in danger. Here, Dharma is broken every day. What we need is a satvik parliament devoid of corrupt politicians, so that democracy runs on principles.” The lawyer from Kerala, whose case was argued by Fali Nariman, was from Kerala, incidentally the state from where Rahul Gandhi got himself elected as an MP with the support of Muslim League after losing his traditional seat of Amethi in UP. The Supreme Court, in the July, 2013 Judgement ruled that Clause 8(4) was unconstitutional, thus the suspension of disqualification post-conviction, while waiting for the appeal to be decided upon, was ruled out. The Supreme Court bench of Justice AK Patnaik and Justice Sudhanshu Jyoti Mukhopathyay held that the Parliament had no power to enact sub-section (4) of Section 8 of the Act (Representation of People’s Act, 1951) and accordingly the sub-section was ultra-vires the constitution, the judgement added notwithstanding that he files an appeal or revision against the conviction and/or sentence. The sub-clause which many intellectuals opposing the disqualification of Rahul Gandhi are harping on was struck down as unconstitutional in 2913 by the Supreme Court when UPA was in power.
Another question is being raised by the narrative-builders and propagandist on what they claim is undue haste in effecting the disqualification of MP from Wayanad. The same 2013 judgement answers on this. It Staes that the the seat of a member who becomes subject to disqualification..will fall vacant on the date on which the member incurs the disqualification and can not await the decision of the President or the Governor as the case may be, under Articles 103 and 192 of the constitution. When this clear and firm verdict came from the Supreme Court on the 10th of July, 2013, in a hurry to protect the convicted leaders of Congress and their allies (Laloo Yadav’s corruption case was key consideration at that time whose conviction was supposed to come on 30th of September), UPA under Sonia Gandhi and Manmohan Singh brought in anordinance to upturn the court verdicton 24th of September, 2013 after their review petition was dismissed in early September, 2013. As fate would have it, a mere MP, and not even the President of the party, Rahul Gandhi, thrusting his supremacy over other elected members of the Manmohan Singh cabinet, tore off the ordinance in a public display of arrogance, humiliating the sitting Prime Minister of India.
Now, himself disqualified under the same law, under the same article of Constitution, Rahul Gandhi joins a long list of political heavyweights like Laloo Yadav and late Ms. Jayalalitha in being disqualified. The advisors who advised Rahul to be abusive and obnoxious briin order to project himself as a contender to the power are cacophonous and cantankerous in their opposition to his disqualification. Amid all the noisy propaganda by his supporters, the fact remains, Rahul’s own political and family history has come back to haunt him. We will not get into the nonsensical narrative building by the cottage industry called ‘Make Rahul PM’ claiming that the case was filed in 2019 because Hindenburg was to make a mischievous Adani report in 2023. The fact remains that while Rahul is the latest victim of the law, validated by the first amendment of Nehru, it has saved Indian democracy from convicted criminals acting as law-makers even after their conviction in the courts of law.
(Saket Suryesh, an author and columnist, is a popular presence on social media for his penetrating views, often disarming. A few of his books include “गंजहोंकीगोष्ठी”, “The Revolutionary Bismil” and “हिंदीकथासंग्रह – “एकस्वर, सहस्त्रप्रतिध्वनियाँ”)